On 10 October 2018, in vzw Greenpeace Belgium v Flemish Region, the President of the Dutch-Speaking Court of First Instance of Brussels ordered the Flemish Government to draft a comprehensive air quality plan for the entire region, subject to a penalty payment of 1.000 EUR per day of delay. Insufficient data communication as well as frequent and permanent annual limit value exceedances for NO2 violate the Air Quality Directive 2008/50/EC

Vereycken, Sofie

Ghent University Academic Bibliography

LanguagesLinksOrder of the President of the Dutch-speaking Court of First Instance ofBrusselsCurieuzeNeuzen VlaanderenLearn moreWorld Commission on EnvironmentalLawHome > NewsAbout News Press Contact Get involved Union Portal Blog EN  FR  ESSearch...A partial win for Greenpeace Belgium in airpollution case against the Flemish RegionTue, 06 Nov 2018By SoSe Vereycken - On 10 October 2018, in vzw Greenpeace Belgium v Flemish Region, thePresident of the Dutch-Speaking Court of First Instance of Brussels orders the Flemish Governmentto draft a comprehensive air quality plan for the entire region, subject to a penalty payment of 1.000EUR per day of delay. InsuXcient data communication as well as frequent and permanent annuallimit value exceedances for NO2 violate the Air Quality Directive 2008/50/EC.The harmfulness and risks posed by air pollution, both on the human health and the environment, have becomeincontrovertible. Annually, between 5.5 and 7 million people die prematurely from air pollution exposure. Billions more areharmed, with research showing that 91% of the world's population live in areas with air pollution above WHO limits. Airpollution takes a toll on the health of the most vulnerable populations, whereby, for example, the risk for asthma in childrenincreases with 15% every time exposure to nitrogen dioxide (NO ) increases by 10 µg/m³ per annum. Although the need tocombat air pollution can clearly not be understated, Dr Tedros Adhanom Ghebreyesus, the WHO’s director general, stated lastweek that “despite this epidemic of needless, preventable deaths and disability, a smog of complacency pervades the plant”.Considering this urgent need to respond to this challenge, the WHO Global Conference on Air Pollution and Health, the Srst-ever global event to focus on both air pollution and health, is currently taking place in Geneva.Within the EU, Directive 2008/50 on ambient air quality and cleaner air for Europe (“Air Quality Directive”) aims toimprove the air quality status by combatting emissions of pollutants at the source and identifying and implementing themost effective emissions reduction measures at all relevant levels. The Air Quality Directive is geared towards a uniSedapproach to the assessment of ambient air quality by employing common assessment criteria, combining obligatory Sxedmeasurements with other possible techniques (such as modelling), supplementing general reductions of hazardous pollutantconcentrations with limit values and requiring Member States to communicate their monitoring results to the EuropeanCommission.As for Member State Belgium, the three Regions of this federal State (Flemish Region, Walloon Region and Brussels CapitalRegion) hold the majority of competences related to the environment, including the protection of the air against pollution andthus the implementation of Directive 2008/50/EC. Alleging “an overall lack of decisiveness to improve ambient air quality and2EnglishTHEMES REGIONS RESOURCES EXPLORE SUPPORTinadequate measurements on both sides of the language boundary” and, in particular, violations of the NO  air qualitystandards under Air Quality Directive, Greenpeace took the Flemish Region (equating to roughly the northern half of Belgium)to court. A parallel procedure is still pending for the southern, French-speaking Walloon Region. On 10 October 2018, thepresident of the Dutch-speaking Court of First Instance of Brussels issued its order in the case of Greenpeace Belgium vFlemish Region, partially accepting Greenpeace’s claims. The Srst point of contention concerned the way in which air quality is measured and to what extent this information mustbe communicated to the European Commission. According to the applicant, the Flemish Region violated its obligationsunder the Air Quality Directive due to its failure to communicate the information obtained through modelling techniques anddetailed studies to the European Commission. Particularly cumbersome was the fact that these additional measurements,carried out by the Flanders Environment Agency and the Department for Environment of the Flemish Region, showed fargreater exceedances of NO  in the region compared to the Sxed, automatic measurements on which it did report. The latteronly indicated one zone exceeding the limit value of 40 µg/m³, namely Antwerp. The respondent, however, maintained that inproviding the EC with the data collected by the automatic monitoring stations, the minimum requirements of the Air QualityDirective were met. In his order, the President rejected the government’s claim. While the directive indeed holds that Sxedmeasurements shall be used to assess the ambient air quality as a minimum requirement, those techniques may besupplemented by modelling techniques and/or indicative measurements to provide adequate information on the spatialdistribution of the ambient air quality. Although not an absolute requirement, it is self-evident that when data is collectedthrough other (trustworthy and in accordance with the conditions laid down in the Directive) techniques, that informationmust be taken into consideration when drawing up policy, implementing the Directive 2008/50/EC and during the actualassessment of the air quality. A Snding to the contrary would run counter to the Directive’s objective as well as undermine thebasic assumption that a Sxed measurement is the optimal, most stringent technique for assessing the ambient air quality.Therefore, if the facultative methods indicate that the limit values were not respected, this amounts to a violation of the AirQuality Directive. Similarly, a violation is established when a Member State has applied indicative measurements andmodelling techniques but has not passed this information onto the European Commission. Given the lack of reporting to theEuropean Commission of any data obtained outside of the Sxed monitoring stations, the Flemish Region was ordered toprovide all information to the European Commission within a time frame of 3 months.The provision of adequate information on the spatial distribution of the ambient air quality and the actual air qualityassessment go hand in hand, bringing us to the second problem. When a Member State does not attain the limit values ofthe Air Quality Directive, an air quality plan must set out measures to reduce the exceedances within the shortest possibleperiod for the zone where those values are not met. When assessing such an air quality plan, the Court must also determinewhether the measures therein can indeed lead or have led to keeping the exceedance period as short as possible. Contrary tothe claims of Greenpeace, the Flemish Region held that it had complied with the Directive, given that it devised an air qualityplan for the Antwerp agglomeration, i.e. the only zone where the automatic monitoring stations showed a few exceedancesof the annual NO concentrations beyond the annual limit value of 40 µg/m³. From the information obtained by the air qualitymodelling techniques, however, frequent and permanent annual limit value exceedances for NO spread over variouslocations in all six zones and agglomerations in which the Flemish Region was delimited. In other words, it is clear theobligation imposed by the Air Quality Directive regarding the annual limit value of NO  was violated in the entire FlemishRegion. The President of Dutch-speaking Court of First Instance of Brussels went on to Snd that “the measures taken by theFlemish Region and the policy pursued are not suXcient to avoid these exceedances, nor are they of a nature to be able toreduce air pollution below the annual limit value within the shortest possible period”. Consequently, the Flemish Region wasordered to reassess the existing air quality plan for the Antwerp agglomeration, to expand its scope to the entire territory ofthe Flemish Region and to formulate measures taking into account all the data obtained, not solely those of the Sxedmeasurements. The respondent must do so within a period of one year, subject to a penalty payment of 1.000 EUR per day ofdelay, with a maximum of 5.000.000 EUR.Given that the annual limit value for NO entails an obligation of result, the mere exceedance thereof equals a violation of theAir Quality Directive and entails a clear obligation for the relevant authority to create the aforementioned air quality plan. TheMember State does still retain its margin of discretion with respect to the precise implementation and the measures to beadopted. As long as the exceedances are reduced to values below the annual limit within the shortest possible period, theMember State’s government can weigh the interests between the objective of reducing the risk of pollution and the publicand private interests, technical diXculties and budgetary constraints. Moreover, the judiciary cannot take over policymakingof the legislative and executive powers. Rather, the Court must exercise restraint when imposing policy measures onto thegovernment. The regulatory freedom of the authorities must be respected, so that no judge can oblige the government totake this or that particular measure if said measure is not the sole way in which the government can restore the legality ofthe situation. Therefore, the gamut of the remaining claims put forth by Greenpeace were to no avail. They included requeststo ban diesel cars in the Flemish Region by 2035 (as NO  originates mainly from diesel engines), to gradually introduce ultra-low emission zones (ULEZ) in all Flanders, to increase subsidies for public transport, to create a new “smog alarm” thatincludes not only Sne particulate matter but also NO and requires additional measures when activated, to further introducekilometer charges and to prohibit any other measure that statistically would cause NO exceedances. It can be concluded that Greenpeace gained a win (at least partially), but the order clearly has its limits. Although thePresident of the Court found the Flemish Region to be in breach of the Air Quality Directive and ordered it to draw up acomprehensive air quality plan for the entire territory, the separation of powers prevents any remarks as to the actualmeasures to be encompassed therein. The cabinet of the Flemish Ministry for Environment, Nature and Agriculture has since222 2 22 22 2 stated that the draft air quality plan was agreed upon by the Council of Ministers and no problems for timely compliance withthe order are expected. Greenpeace, however, is sceptical as to its content, Snding it doubtful that the measures listed in thedraft will suXce to meet the relevant international and EU goals on ambient air quality and pollution reduction.AuthorSofie VereyckenPhD researcher at the Center for Environmental and Energy Law of the Faculty of Law andCriminology, Ghent University, Belgium and the United Nations University Institute on ComparativeRegional Integration Studies, Belgium

A partial win for Greenpeace Belgium in air pollution case against the Flemish Region

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A partial win for Greenpeace Belgium in air pollution case against the Flemish Region

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